The new magistrate of the Constitutional Court, José María Macías, expressed this Tuesday a dissenting vote – the first of his mandate – in which he denounces the “serious irregularity” occurred in the composition of the TC who decided to accept the abstention of Juan Carlos Campo in the appeals of unconstitutionality promoted by the PP against the amnesty law.
These abstentions were estimated today with a TC divided into six votes against five and with the participation (and presentation) of the president, Cándido Conde-Pumpido, challenged by the PP.
Judge Laura Díez, who also participated in the plenary session that ruled on Campo’s abstention, is also contested by this party.
Macías himself was challenged by the prosecutor, not in the appeals subject to the abstentions examined today, but in the question of unconstitutionality raised by the Supreme Court, and by the Public Ministry of the State in all the appeals of the PP, not yet admitted to the procedure.
“Knowing that I have already been challenged by the public prosecutor, I must clarify that My participation in the plenary session occurred against my criteria and by decision of the plenary itself,” Macías said in his private vote.
The magistrate maintains that neither the president, nor Díez, nor he himself should have intervened to decide on Campo’s abstentions. In his case, he understands that he should not have participated even if the Government’s recusal is considered premature, since appeals are not admitted for processing.
“The plenary session of the Constitutional Court has constituted irregularly because the challenged magistrates participated before the disputes were resolved“, defends Macías, who considers that the formation of a court is not a simple internal, organizational or external matter. “Because it is a nuclear issue, that is why the law guarantees its correct formation with a series of guarantees at the service of the parties, including the recusal,” he emphasizes.
Let us recall that both the Organic Law of the TC and the Organic Law of the Judicial Power establish that, once the challenge is raised, the challenged magistrate cannot intervene in the procedure until the incident is resolved, and the procedure must be suspended until that moment. “And the exclusion applies to the procedure as a whole, including both the main procedures and their incidents,” he specifies.
“When several people are arrested, they do not intervene in their dispute or in that of others when several people are arrested.”he emphasizes.
“The opposite would not only be contradictory (if it is necessary to determine whether a magistrate can regularly intervene in a procedure, it cannot be accepted that he can participate in the key aspect of the composition of the court which decides whether he can belong to this court), but would easily lend itself to an appearance of collusion between the challenged judges which would irremediably erode the credibility of the court.
Ensure the result
In this case, moreover, “the appearance could be much worse: since there is no question of the Plenary Assembly being constituted, it would inevitably be necessary to conclude that one does not want to protect the functioning of the court, but rather to preserve a certain majority that was previously considered a given” regarding the amnesty law.
“Such an approach would discredit the TC as a body of justice and support the discourse of its politicization, not in its composition, but in its functioning,” he adds.
Since the TC is a body whose members are not replaceable, constitutional case law has established that the challenged judges may only participate in the decision on their own requalification when the incident affects all the judges or when the number of challenged judges determines that the body cannot be replaced. . may be constituted due to lack of quorum (set at eight magistrates).
It was only in an order of December 2022 that the intervention of the challenged themselves was admitted, by majority, to avoid what was interpreted as an abusive challenge derived from the selection criteria applied by the challengers: there were four magistrates in which the same case occurred; only two were challenged: the president at the time, Pedro González-Trevijano, and Judge Antonio Narváez.
At the time, the current president voted against this decision. Conde-Pumpido argued that even in this case of fraudulent recusal, it was not acceptable for the accused themselves to participate in the decision of the incident, Macías recalls.
In the current case, where one magistrate abstained and three were challenged, the quorum is not in danger, so the last three should have withdrawn from any intervention in the appeals until their challenges are resolved, he believes.
This was done in the previous most recent multiple challenges, he points out. He refers to resolutions from February 2023 in which Juan Carlos Campo and Laura Diez were absent – both – from the plenary session because they were challenged. “These magistrates did not participate, neither to resolve their own challenge nor that of the other,” Macías says.
The presentation
The dissenting vote also disagrees with the fact that Conde-Pumpido was the rapporteur of the trial in which Campo’s abstention in all the appeals promoted by the PP is accepted. This, according to Macías, is not justified in the provision invoked by the president, article 15 of the organic law of the TC.
According to this precept, the president of the court is responsible for adopting “the precise measures for the functioning of the court, the chambers and the sections”, a provision which refers, maintains the dissenting voice, “to purely organizational aspects which in no case allow the suppression or exclusion of the rules of distribution of matters”.
José María Macías also voted in favor of Campo’s impeachment for all matters related to amnesty, but not for the reasons put forward in the approved resolutions.
“A justified abstention in the circumstances of having held legal advice in the past on a subject submitted to the knowledge of this Court is something that contradicts its doctrine,” Macías said in reference to the argument that Campo should not intervene because he considered amnesty unconstitutional when, as Minister of Justice, he drafted the proposals in favor of pardoning those convicted for the “trial.”
For Macías, “the expression of opinions, before entering the Court, on legal issues in scientific publications or journalistic articles, and even in the official reports of the General Council of the Judiciaryand even if there is no indication that the opinion has changed, this does not disqualify magistrates from participating in the decision of a case.
The mention of the CGPJ is relevant. In February 2023, the TC refused by majority to accept the abstention of Concepción Espejel to judge the abortion law, on which this magistrate had ruled as a member of the CGPJ. Macías is now challenged for having voted in favor of two CGPJ reports on the amnesty law.
“As stated in the resolution [sobre Espejel]”It is not expected that the members of the TC arrive at this high judicial power with an empty head, but with an open mind, willing to assume that, in the debate between the magistrates, their opinions can be nuanced, modified or simply abandoned to assume those of others,” says Macías.
In the case of Campo, “although the cause for the abstention did not exist and it was not appropriate to accept it in accordance with the doctrine of this court, the fact that the magistrate raised the abstention by claiming to have an “interest” in the matter, even if this “interest” was not identifiable, disqualified him as a member of the court, because it amounted to recognizing that he was not able to comply with what was expected of its magistrates: have an open mind (not empty)“, he concludes.
